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SCOTUS hears arguments on Biden Administration’s vaccine mandate executive order

The Supreme Court of the United States took up President Joe Biden’s controversial executive order, hearing oral arguments from both sides of the issue.
Published: Jan. 7, 2022 at 6:58 PM CST
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WASHINGTON, D.C. (KALB) - The Supreme Court of the United States took up President Joe Biden’s controversial executive order on Friday, January 7, hearing oral arguments from both sides of the issue.

Ohio Solicitor General Benjamin Flowers argued against the Occupational Safety and Health Administration (OSHA) vaccinate-or-test standard required for large businesses. He had two points of emphasis: the idea that OSHA does not have the power to institute vaccinations under workforce standards and, since not everyone is in “grave danger,” then not everyone should be required to be vaccinated.

“We accept the line that has been drawn for other important industries that simply the fact that a risk exists outside the workplace, doesn’t mean you can’t address it when it’s inside the workplace,” said Flowers, who tested positive for COVID-19 and joined the hearing by phone. “What we dispute is the idea that a risk that is ever-present in all places and can’t be regulated simply because it is also in the workplace.”

A few justices, like Justice Samuel Alito, seemed to call into question the mandate’s power to not only impact workers within the workplace but also once they go about their lives outside of the facility.

However, Elizabeth Prelogar, acting U.S. solicitor general, arguing for a temporary hold on the lower court rulings, while the cases continue to play out, said the court should reject the notion that OSHA has no power to regulate COVID-19 standards. She also emphasized the agency’s decision to provide employers with a vaccinate-or-test requirement, making it not solely a vaccination mandate.

”As Justice Kagan noted, often employees have little control over their work environments,” said Prelogar. “They can’t control how they can socially distance, who they come into contact with, what precautions those people are taking, what ventilation systems exist. And, ultimately, OSHA determined anywhere there is a risk for transmission, there is a grave danger to unvaccinated employees.”

Chief Justice John Roberts appeared to critique the mandate as a “workaround.”

“I don’t think, as more and more mandates, more and more agencies, come into place, it’s a little hard to accept the idea that this is particularized to this thing,” explained Roberts. “That it’s an OSHA regulation. That it’s a CMS regulation. That it’s a federal contractor regulation. It seems to me that the government is trying to work across the waterfront, and it’s just going agency by agency.”

Following arguments on the OSHA case, justices took up the CMS vaccinate mandate case, impacting healthcare workers nationwide. The mandate would require vaccination for all employees in healthcare facilities under Medicaid and Medicare funding.

In this case, vaccination is the requirement.

Principal Deputy U.S. Solicitor General Brian Fletcher argued on behalf of the Biden Administration, strongly emphasizing Department of Health and Human Services Secretary Xavier Becerra’s authority to impose regulations aimed at protecting and enhancing the health and safety of patients in healthcare facilities.

Since this case deals principally with the idea of funding, some justices, like Justice Neil Gorsich, questioned whether such actions were permissible under the Spending Clause Statute, which does not allow money to be used as a “weapon” to control facilities. However, Fletcher explained it is not a controlling measure because the federal government is not telling facilities who they can hire, rather they are setting certain regulations on the health and safety of patients, which can also impact requirements for employees.

Meanwhile, the Missouri Attorney General’s office argued rural hospitals are unequally impacted by mandate, leading to staffing shortages.

However, Fletcher explained that the turnover rate in the healthcare industry, which is already at 25%, would not be drastically impacted by the mandate.

Louisiana Solicitor General Liz Murrill, also calling to the hearing, called the CMS mandate a “bureaucratic power move that is unprecedented.”

However, Justice Sonia Sotomayor and Justice Elena Kagan, offered up an opposing perspective, that an unprecedented time might call for an unprecedented move.

“Why isn’t this necessary to abate a grave risk? This is a pandemic in which nearly a million people have died,” explained Kagan. “It is by far the greatest public health danger that this country has faced in the last century. This is the policy that is most geared to stopping all this. There is nothing else that will perform that function better than incentivizing people, strongly, to vaccinate themselves.”

Louisiana Attorney General Jeff Landry, who sat in the courtroom during the hearing, offered up his take on the proceedings after arguments concluded.

“I have not had someone tell me, you know, I really want to go into the hospital but I’m afraid to go get a procedure because I don’t know if the person’s vaccinated or not,” said Landry. “Actually, I hear the opposite from nurses especially, and some doctors that are like concerned about the potential long-term effects of the vaccine. That they want to wait, and it is a choice they want to make.”

Arguments for both cases were admitted before the court and the justices adjourned until Monday. There is no indication yet of what decision they could make on either of the cases.

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